Knocking the Prosecutor for Some Loops

By Clarice Feldman

Into every bully boy's world a tougher opponent will appear. Today the prosecution gets to meet the defense, and the defense has landed some blows designed as much to undercut the challenger's confidence as to get into the record what they need.

(And it looks like the referee  finally noticed a whole lot of things about this match he'd overlooked or missed before. Not the jury, though, they seem to get this very well.)

I am still having problems online and Kim Pearson, fellow MBA blogger is letting me use her computer on the break.
I leave it to others to give you the stenography. What we are watching today is the defense knocking the starch out of "Elliott Ness with a law degree" by highlighting a series of blunders the prosecution made. (I'm sure some want to know if Fitz is sweating  as he was at the presser. Can't tell from the feed, but he does seem to be wearing that washable seersucker suit again.)

.Two of the biggest blunders to date were failing to put anything on to support the July 12 count on Miller.With that out, obstruction is only available on the Cooper count(are you kidding?) and the Russert count.Fitz seemed shook as he made what I thought was a very weak argument that the jury could infer the July 12 stuff from the other conversations. .(I will detail this further tonight when I get home but he never charged Libby with perjury re Miller, only with obstruction and if that's out, it would only seem logical to tell the jury to disregard all that.)

A potentially bigger issue is the offhand remarks the judge made earlier that Libby couldn't put in the memory defense if he didn't testify..Most particualry the CIPA stuff. There was heated argument on it and at 4:30 it will continue. Basically, in stipulating to relevant facts (including that Libby was focused on all that stuff in the CIPA materials) the govt never reserved that the stipulation applied only if Libby testified.

The defense is arguing an agreement was made, not based on Libby's testimony, and they have based their opening statement and case on that agreement.

We will hear more about this. I predict that while the stipulation might be whittled down a bit--the judge thinking the govt might have misunderstood (ie. been taken to the cleaners by shrewder counsel), most of this stuff will find it's way into the record even if Libby does not testify.
WHAT IS CRITICAL AT THIS POINT IS THAT THE JUDGE HAS BACKED WAY OFF of earlier comments suggesting Libby can't use CIPA stuff etc if he doesn't testify. He can, if he lays the proper foundation.

The more subtle point is the defense counsel has outmaneuvered the prosecution at several key points and the prosecution knows it and is off its edge in my opinion.

(I lent Jim Engle last night's pleading and we discussed this. We seem to be in agreement on this point-- The defense is both fighting for its points on the evidence AND Smacking the SP around a little.)

I thought Woodward was an impressive witness, helpful to Libby and that the jury is paying attention--asking him if anyone else knew--to which he said he'd told Pincus..

Comments

[clarice]

TM, I'm petrified to use your edit function and press my luck..If you can please make these changes (Novak is up)

****is finally notING a whole lot of things about this match he'd overlooked or missed before. Not the jury, though, they seem to get this very well********

[topsecretkk9]

-but he does seem to be wearing that washable seersucker suit again.--

this is the second mention I've read this...seersucker in winter? Prolly a bachelor thing.

[Dan S]

I mentioned in the other thread how impressive Woodward came across on the page. That applies to a lesser degree, but still applies, to the other two also.

And, of course, the contrast in cross-examinations is, to put it very mildly, striking. I wonder if the jury see that and realizes that one of two things is in play: (1) Fitz didn't interview these witnesses and doesn't want to risk asking the wrong question or (2) Fitz did interview these guys and doesn't want to risk asking the wrong question.

One could easily get the impression that Fitz is afraid to unravel his case (further) by probing these witnesses. I hope twelve ones got that impression too. The jury questions appear to show at least one there did.

[Javani]

"this is the second mention I've read this...seersucker in winter?"

A Clarence Darrow wannabe?

[Neo]

he {Woodwrd] said he'd told Pincus

My memory is slipping here, but didn't Pincus say that Woodward never told him.

Did Pincus ever meet the GJ to say so ?

[Jay Currie]

From FDL not a transcript of the bench conference:

"Wells: I'm going to call the Agent [Eckenrode] tomorrow. This is the one instance bc the notes cannot be found–there was a diligent search for the notes."

Thus the cat is released amidst the pigeons.

For some reason Fitz did not want to call his lead investigator and called the rather weak agent Bond instead. Somehow the notes of the Russett/Eckenrode conversation were lost. Fitz has been coy about who might have been present when Eckenrode interviewed Russett.

Hmmm.

[Alcibiades]

Pincus disputes Woodward on that point - says he doesn't remember that it happened - which is helpful for Libby because it shows everyone was forgetting - presumably because it only carried the full weight of the story later on.

[Neo]

Maybe it's his "lucky" seersucker suit.

Sort of like that lucky hat that John Kerry got from the CIA dude.

[clarice]

I think JOM should take a bow on Eckenrode..I doubt if we hadn't noticed and pointed this out, Eckenrode would be making his visit..Just my guess of course, and it could be egotism, but I doubt it.
Bravoe--TM and the horde..

[Carol Herman]

FROM CAROL HERMAN

RE: HOW I DRAW SOME THREADS TOGETHER

Awhile ago, Glenn Reynolds recommended reading Jan Crawford Greenburg's fantastic book: SUPREME CONFLICT.

In it, she describes how Rehnquist, and all the other Supreme-O's, were veered off the "Right's agenda," because they all read the WaPo. And, yes. "That" paper molds opinions. Especially the opinions of those thrown into the limelight.

Woodward, Pincus, and Novak, by testifying today, will probably ALSO write up some thoughts for publication, t'marra. (Not just our wonderful Clarice.)

These opinions will sway Walton. WHo seems somewhat clueless over the games the lawyers were playing out in front of his bench. He seemed quite clueless that Fitzgerald was a bully. And, he seemed to think, too, that "Libby MUST testify." WHich brings doubt raining down on him. To which: Did he sleep though some law classes? Was his Bar Examination results poorer than JFK, Jr's? Templesman had to help John-John out. (And, it took 3 attempts to finally pass.)

Again, Walton, too, seems to have been caught off guard.

And, Walton, too, listening to the WaPo "hot shots" today, and Novak; may become aware that history is also watching. He doesn't have to come off like the OJ jurors, ya know?

[Larry]

""lucky" seersucker suit." Matlock

[Dan S]

Apuzzo not as on today as he can be:

" WASHINGTON (AP) -- Jurors in the CIA leak trial on Monday heard a one-minute excerpt from Washington Post journalist Bob Woodward's tape recorder which revealed a top State Department official repeatedly discussing CIA operative Valerie Plame."

Plame wasn't mentioned at all. "Wilson's wife" was. This sort of conflation of identities is a problem where how she is referred to can help determine who passed along what, canary trap style. "Operative" was also not used, "analyst" was.

Get your facts in line, Apuzzo!

[Javani]

Clarice, all

I see at FDL Fitz mentioned "jury nullification" -- first and without any obvious instigation.

Sounds like he's nervous...

[jwest]

Think the Libby Defense Fund would send us a check if we billed them?

Or is this a contribution?

[ghostcat]

Why am I reminded of the old joke about the confused young man who meant to go to Cox to buy a seersucker suit, but went to Sears instead?

[Javani]

Novak's up!!

FDL:

""Novak sitting there looking shiftily from right to left, kind of sitting back in the seat.""

Ol' Slouchy at par.

Can't the prosecution and defense "just get along" here and both bash Novak for his comment that the CIA didn't warn him enough!

Average juror gonna think CIA says that to me, not only am I not blabbing, I'm forgetting!

Jury will think, Wells hopes, why is this dark character not on trial, but the puppyish Libby is?

[Dwilkers]

Lost notes my aching ass.

Special Prosecutor investigation of the WH and the lead FBI guy lost his notes of the key conversation with the witness that established the main counts in the indictment?

Riiiiiight.

[cathyf]

I think JOM should take a bow on Eckenrode..I doubt if we hadn't noticed and pointed this out, Eckenrode would be making his visit.

Hey, I think that Team Libby ought to petition to have some JOM postings submitted as evidence. You know, the judge can tell the jury that these threads are not submitted as evidence of the truth, but just for how they "prove" Fitzgerald's state of mind.

*smirk*

[Dan S]

VERY interesting. So defense has phone records of a reporter, and prosecution has no phone records of reporters?

I wonder how the jury will take this.

[ROA]

Dwilkers: Of course the notes were not lost. They were removed by the White House to weaken Fitzgerald's case. Everybody knows that.

[topsecretkk9]

--VERY interesting. So defense has phone records of a reporter, and prosecution has no phone records of reporters?--

huh?

[Rick Ballard]

Any bets on who will do the cross of Eckenrode? I'll take "anybody but Fitz" for $5.

Wells is doing an excellent job of banging through the defense witnesses very quickly. Great tactical move, IMO.

[fdcol63]

ROA,

{sarcasm}

And everyone knows that Cheney and Rove have the ECHELON transcripts of emails and cell phone calls between all the reporters. As well as audio and video of them at all their parties.

Just HOW did liberals think they were actually gonna get a Libby conviction?

{/end sarcasm}

LOL

[PMV]

FROM FDL

J Were you aware that Wilson's wife worked at CIA. When did you first learn that fact?

WP July 12.

J By phone or in person?

WP By Phone.

J Where were you?

WP At my desk at WaPo.

J Even though that's a Saturday

FROM WALTER PINCUS JULY 6, 2003

Ex-Envoy: Nuclear Report Ignored
http://www.commondreams.org/headlines03/0706-05.htm

"While his family prepared for a Fourth of July dinner, he proudly showed a reporter photos of himself with Bush's parents. On a den wall was a framed cable to him in Baghdad, from the first President Bush, dated Nov. 20, 1990"

FROM DANA PRIEST OCT 8, 2003

The Spy Next Door
http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&contentId=A58650-2003Oct7&notFound=true

"One evening this summer, former diplomat Joseph Wilson sat amid the African-themed decor of his spacious Washington home, sipping a glass of beer and talking about a trip he took to Niger for the CIA. His wife, Valerie, was in the kitchen, preparing chicken for a cookout and arranging red, white and blue napkins.

...
When Valerie E. Wilson -- maiden name Plame -- introduced herself to a reporter in her home on July 3, there was no hint she was anything other than a busy mother with an unflagging smile and classy wardrobe."

On July 3, 2003 the Wilsons held a dinner that included one or more reporters. If you were a super secret CIA spy trying to keep your cover, would you invite into your home the journalists who cover the CIA? Who was at this dinner besides Pincus and Priest? Are we supposed to believe they didn't know she was CIA? The date and tone of the Priest article also raise some interesting questions. I would be interested in hearing what the learned folks at JOM think. My evaluation: Either these guys are dumb as a box of rocks, or they knew exactly who she was and think we are dumb as rocks, probably both.
I would like to thank everyone at JOM for offering the rest of us an alternate souce of information and informed opinion. Thanks for allowing me to eavesdrop on your conversation.

[secarr]

"Lost notes my aching ass!"

Funny, and a good point. I wonder who lost the notes? The FBI agent? or were they lost after being turned over to the SP's office?

[roanoke]

From FDL-

W What he told you WRT Wilson's wife.

RN: After we talked about mission, I asked why in the world they named WIlson when he had been staffer in Clinton NSC, he was believed to be critical of Bush, no experience in policy, had not been in Niger since 1970s [wrong again, Novak], so Armi said he was suggested by wife Valerie who was employee in CPD at CIA.

W You specifically recall that Armi referred to Wilson's wife by name,

RN Yes, as Valerie

W How did you come to learn her last name

RN Wilson's entry in Who's Who. It was listed as Valerie Plame

Ah ha ha ha ha!

Yesssss!!!! Novak!

Also for Empty Wheel I love how Novak gets in the swipe that Wilson hadn' t been to Niger in since the 70's.

That ain't impressive and EW it was the last time he went to Niger not for his own interests.

[Carol Herman]

FM: CAROL HERMAN
TO: JAVIANI

Answer to your question "why Libby and not Armitage?"

BECAUSE THE JOOOOS did it.

George Tenet, as the first paragraph of his new book, "Center of the Storm," as read by Drudge last night, (says in the most peculiar way, said Drudge) ... It's 9/12/2001. I'm about to meet the President, in the WH, for the first time. And, as I'm about to enter, coming out of the OVal Office door is RICHARD PEARL."

The Man Upstairs also knows what he's doing. And, he laughs, too. As the "Ron Popiel" slicer and dicer is cutting Fitz' charges to shredded vegetables.

[Sue]

Prolly a bachelor thing.

Deliberate. The poor government prosecutor up against the striped britches law firm.

[P]

Novak says he may have been source of Libby/Russert mistake.....

[Sara (Squiggler]

I hope the jurors have the same reaction I did when I first heard how Novak looked up Val's name in Who's Who. To me, this was a huge eye opener in this case.

[Dan S]

Topsdog,

I, and others, have been remarking all along on how so many dates that are up in question would be nailed down with a few phone records (or at least, narrowed down). Then we see Novak on the stand doing just that with phone records that Wells clearly has.

Why didn't Fitz do this? He did a LITTLE with gov side phone records, but not really all that much. I haven't seen any admittance of phone records from his reporter witnesses.

One would almost think he needs the timeline to be fuzzy.

[P]

"""W In context of talking to Libby did Wilson's wife come up.

RN I don't remember exactly, I might have raised that question, I got no help, and no confirmation on that issue. ...."""

Reasonable doubt??

[Carol Herman]

FM: CAROL HERMAN
TO: GHOST CAT

Good catch! Sear's sells suckers suits.

[topsecretkk9]

DanS

thanks. I just read FDL and figured out what you were referring to.

[Carol Herman]

FROM CAROL HERMAN

How can Dreck-enrode, not come out looking like Mark Felt, t'marra?

[jwest]

After watching all of the Sunday opinion shows, I think everyone at JOM should take a bow.

It’s a credit to the contributors and readers of this blog to have taken the interest in learning as much as possible about this case. When compared to nationally recognized political and press figures, the extent of their breathtaking ignorance on even the most basic facts becomes clear.

Although we will never see Clarice invited to refute one of David Schuster’s reports on Hardball, we can at least know that in our small corner of the internet, truth, logic and reason prevail.

[ghostcat]

CArol -

Ya got 1/2 of it. Or maybe yer jes being decent.

[topsecretkk9]

RN: After we talked about mission, I asked why in the world they named WIlson when he had been staffer in Clinton NSC, he was believed to be critical of Bush, no experience in policy, had not been in Niger since 1970s [wrong again, Novak], so Armi said he was suggested by wife Valerie who was employee in CPD at CIA.

W You specifically recall that Armi referred to Wilson's wife by name,

RN Yes, as Valerie

W How did you come to learn her last name

RN Wilson's entry in Who's Who. It was listed as Valerie Plame.

W Armitage did not give you the last name.

W You used the term Agency operative. Did that come from Armitage

RN I've referred to people probably too much as operatives politicians as political operatives. Didn't indicate I had knowledge of her being intell operative but as employee of CIA.

W Did you have knowledge she was covert.

RN No.

See Ghost Kitty- he on to Wilson's hit job!

[Javani]

""Novak says he may have been source of Libby/Russert mistake.....""

Whatever.

Nothing will ever amend his reputation that he's a tattler and can't keep a secret.

[Rick Ballard]

"One would almost think he needs the timeline to be fuzzy."

Watch it, buddy. Contempt of prosecutor carries a very heavy penalty - double if you've ever voted Republican.

[ghostcat]

TS -

Luv Novak's answer there.

[Sue]

RN: I had been trying to get appointment with Armitage since 2001, he had declined to see me, had indicated he just didn't want to see me. After 9/11 I tried again, got rebuffed. At the end of June, last week of June, his office contacted me, said he'd see me. Made appointment for July 8, afternoon, his office, State.

I knew it wasn't an accident. Armitage was actively looking to get Plame in print.

[Carol Herman]

FM: CAROL HERMAN
TO: PMV

Ah. And, exactly how was Valerie introduced to reporters in Aspen. May 2003. At the EPIC meeting? There's now enough snow there (in this story) to claim she was "off" skiing.

[cathyf]

Carol, I disagree. I think it's much more likely that Eckenrode is going to end up looking like Mark Furman than Mark Feldt...

[jm]

Novak is helping provide reasonable doubt on so many levels. First, he may have brought it up to Libby and the conversation was so close in time that Libby might reasonably have conflated it with his more heated discussion with Russert. Plus, if Libby testifies he was aware of the Mitchell video appearance ("everyone knew") on October 3, this may further explain his belief it was Russert. Second, the jury has now heard from a few reporters in this time period who Libby did not leak to. Third, if Libby was going to lie, why pick Russert when he could have said he heard it from Novak? Novak is plausibly friendlier and Libby already knew from Rove that Novak had the info.

[topsecretkk9]

RN Wilson's entry in Who's Who. It was listed as Valerie Plame.

Wilson fails the smell test in front of jurors

Wilson: My wife’s name is Wilson. It is Mrs. Joseph Wilson. It is Valerie Wilson. And he named her. He identified her. So that argument I don’t believe stands the test of — stands the smell test.

[Alcibiades]

TS: translation please:

See Ghost Kitty- he on to Wilson's hit job!

[Cromagnon]

Libby's lame-ass high-priced defense team is a 'tougher' opponent than Fitz? LOL Thats a hoot. They are not even defending him against the actual charges, they are more concerned with who did or who didn't out Plame and trying the confuse the jury with that. Unfortunetely for Scootie-boy, thats not what he's charged with. If I were the wingnut welfare money dispenser, I would be wanting my money back for such a lame-ass defense.

On another note, it looks like Scootie-boy isn't gonna have the balls to testify in his own defense. Pretty pathetic but I'm not surprised after the way he was grilled into submission by Fitz in the GJ. Plus it would likely result in even more perjury charges since it doesn't seem he can keep his story straight from one minute to the next

[Tom Maguire]

Eckenrode would be making his visit..Just my guess of course, and it could be egotism, but I doubt it.

Bravoe--TM and the horde..

Let me add a second bravo - I recall my own plaintive plea for an explanation of the lost notes, but whoever picked that up in the Fitzgerald filing did a great job. I'm bravo'ing Clarice unless I hear different.

Clarice - I tried to cast an editorial wand over this post to fix a few typos but Typepad is locking me out just now.

But while we looking for things over which to gloat - over at the traffic meter I am getting over 5,000 hits per hour (unprecedented at this blog in my memory) from the Huffington Blog - Arianna is more skeptical than Russert than I am, and linked to the "Russert, Equivocater?" post.

SO, our stories are getting out there. Kind of cool.

[cathyf]

Third, if Libby was going to lie, why pick Russert when he could have said he heard it from Novak? Novak is plausibly friendlier and Libby already knew from Rove that Novak had the info.

You're making it even more complicated than it is. The prosecution claims that Libby decided to lie in October, 2003. No mystery as to knowing in Oct that Novak knew in July!